Sentence Imposing Imprisonment is Final Even if the Amount of Restitution is Undetermined; Pro Se Litigant’s Third 2255 Motion Deemed Successive Petition

The Circuit addresses two issues in this case: the first concerns its jurisdiction to review a judgment of conviction that imposes a sentence of imprisonment and restitution but leaves the restitution undetermined; the second, whether the district court’s failure to advise the defendant about mandatory restitution, during the plea allocution, is plain error warranting vacutur of the defendant’s guilty plea.

The Circuit holds (1) that a judgment of conviction imposing both a sentence of imprisonment and restitution, but that leaves the amount of restitution for a later determination — and one that here, never happens — is nevertheless “final” under 28 U.S.C. § 1291, and the Circuit therefore has jurisdiction to review the judgment; and (2) that a district court’s failure to advise the defendant of mandatory restitution at the plea allocution violates Fed.R. Crim.P. 11(b)(1)(K), but it is not plain error — requiring vacatur of the guilty plea — because the defendant could not show “he would not have pleaded guilty but for that particular Rule 11 violation.”

Before the defendant pled guilty, the Government provided him an informational letter (a Pimentel letter) that estimated the Sentencing Guidelines range (which was a 90-year prison term for 4 counts charging the sexual exploitation of a minor and child porn) and that also told him of various statutory penalties, including the potential of a fine (the greater of $250,000 or twice the pecuniary gain or loss) and that restitution was mandatory although it did not specify an amount.

The defendant pled guilty without a plea agreement. But his plea allocution acknowledged that he had read the Government’s informational (Pimentel) letter and had discussed the letter with his lawyer. The court, however, never mentioned restitution.

The court imposed a 25-year prison sentence. It also ordered restitution but deferred setting the amount “for up to 90 days” until September 23, 2014. “No such determination has ever been made, however, nor has the [c]ourt entered an amended judgment.”

Jurisdiction. The Circuit holds that a judgment of conviction that imposes a sentence of incarceration and restitution is “final” for purposes of 28 U.S.C. §1291, even if the amount of restitution is undetermined. “In such circumstances, §1291 permits a defendant to appeal immediately from the initial sentence or to wait until all aspects of the sentence have been determined.”

In a footnote, the Circuit said it was not deciding whether “a sentence imposing an undetermined amount of restitution, but not incarceration, would also be final.” But the Circuit noted that “the mere fact of conviction — apart from any sentence — imposes disabilities that a defendant has an interest in challenging promptly.” As a consequence, courts have “expressed concern about making a defendant postpone his appeal ‘indefinitely’ if a district court is tardy in setting restitution.”

Rule 11. “[T]he District Court clearly erred in failing to advise Tulsiram regarding restitution during the plea proceeding.” But the defense did not object in the district court, so the plain error standard applied. The Circuit states that in the Rule 11 context, plain-error requires a defendant to “establish that the violation affected substantial rights and that there is reasonable probability that, but for the error, he would not have entered the plea.”

The Circuit concludes that the defendant could not meet this burden because of various factors, such as the Government’s informational (Pimentel) letter’s mention of mandatory restitution; statements in that (Pimentel) letter and also by the court at the plea that he could receive a very high fine (in an amount “far higher than he could expect to pay in restitution”); the fact he pled guilty even though he was told he could receive “a maximum sentence of ninety years’ imprisonment;” and the fact that the indictment itself contained a forfeiture count.

A pro se litigant’s third 28 U.S.C. § 2255 motion was determined to be successive “because it was filed after the adjudication of his first § 2255 motion became final.” Accordingly, the Circuit advised the pro se petitioner “that this proceeding will be dismissed unless he files, within 30 days of the date of this decision, a motion for leave to file a successive § 2255 motion.”

His first § 2255 motion became final in May 2013 when the time to petition the Supreme Court for a writ of certiorari ran out. He had filed a second petition two months earlier, in March 2013, and this second motion became final when his petition for certiorari to the Supreme Court, was denied in April 2015. The instant third § 2255 motion was filed in January 2015 — almost two years after the first motion became final, but while the second motion was pending. The pro se petitioner argued “that the third § 2255 motion is not successive because it was filed during the pendency of his second § 2255 motion.”

The Circuit concluded that the instant (third) § 2255 motion was successive because it was filed (in January 2015) after the first motion had become final in May 2013. Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), after a petitioner has had one full opportunity for collateral review, she or he must obtain authorization from a circuit court before filing a successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). The Circuit notes that while a § 2255 motion is pending in the district court, a petitioner can move to amend the habeas petition under Federal Rule of Civil Procedure 15. But Fuller’s third motion was filed ((in January 2015) after the first motion became final (in May 2013) .

Regarding whether the petitioner’s second § 2255 motion had also been successive, the Circuit, in a footnote, states: “Whether Fuller’s second § 2255 motion was successive is not currently at issue, but we note that it differed from the third § 2255 motion in that the second motion was filed before the adjudication of Fuller’s first § 2255 motion became final.” (The second motion was filed in March 2013 before the first motion became final in May 2013). The Circuit does not state that the second motion could have been considered an amendment of the first motion and for this reason not successive. In fact, it does not appear that the second motion was filed in time for a Rule 15 motion to amend a habeas petition, because the district court had already denied the first motion in November 2011 (and the Circuit had denied a certificate of appealability in February 2013), when the second motion was filed in March 2013.

As for whether the third motion could be considered a motion to amend the second motion, the Circuit states “Fuller’s third § 2255 motion cannot be deemed a motion to amend the second § 2255 motion because it was filed after the second § 2255 motion was denied by the district court, and, thus, no motion that could be amended was pending.” (emphasis added). The second motion had been denied by the district court in November 2013 (although certiorari was not denied until April 2015), but the third motion was filed in January 2015 after the district court had denied the second motion (in 2013).